Drone Coming

The growing use of domestic drones is setting off alarms --
justifiably?

By Reid Smith – 7.10.12

In a 1998 piece for Harper's titled "Goodbye to All That: Why Americans Are Not Taught History," Christopher Hitchens juxtaposed dystopia, as imagined in George Orwell's 1984 and Aldous Huxley's Brave New World. Hitchens, who authored several articles on Huxley and a book on Orwell, distinguished Orwell's "house of horrors" that strained "credulity" from Huxley's ability to augur a frighteningly "painless, amusement-sodden, and stress-free consensus."

Both texts describe variant species of social stricture, and the abuse of technology to control thoughts, minds, and the spiritual evolution of our collective conscience. But Orwell and Huxley render alternate visions of coercion -- 1984 foreshadowed a world of fear and active repression, whereas Brave New World imagined social adherence, bought through gratification. For Orwell, "who controls the past controls the future." Huxley's message was much simpler: "History is bunk." Contentment bred stability, knowledge of the past was edited, and people were unable to compare the present with any other time.

In Brave New World you find no hint of the Big Brother that haunted the Orwellian nightmare state. However, when Huxley's protagonist, Bernard Marx, visits his friend and fellow Alpha, Helmhotz Watson, there is a moment when both men are struck by a unique foreboding. Marx flings open the door, suspicious that their conversation is being observed. Of course, there's nobody there, but the moment offers a powerful reminder that this brave, new world is every bit the dystopian dictatorship, where independent thought and action are actively discouraged.

It's a familiar feeling -- one that I'd guess we've all experienced. The sense that somebody's watching you. It's an odd sensation -- you're somehow more conscious of yourself, but your movements feel constrained by a subtle pressure. It's impossible to describe yet hopeless to ignore. It's a gut instinct that's both creepy and compelling.

We may find we're getting used to it.

In February, Congress ordered the Federal Aviation Authority to construct guidelines for the use of domestic drones, acknowledging a broad increase in surveillance, on the home-front.

Under the new regulations, police and first responders will be the first to fly small drones over domestic airspace. Within the next four years, the federal agency is charged with authorizing and certifying the flight of assorted unmanned aerial vehicles (UAVs). By the FAA's own estimates, by 2020, some 30,000 drones, of various shapes and sizes, may be patrolling America, from above.

In the March/April 2012 issue of Foreign Policy, Micah Zenko, of the Council on Foreign Relations, wrote the following about the potential militarization of our airspace:

As of October, the [FAA] had reportedly issued 285 active certificates for 85 users, covering 82 drone types. The FAA has refused to say who received the clearances, but it was estimated over a year ago that 35 percent were held by the Pentagon, 11 percent by NASA, and 5 percent by the Department of Homeland Security (DHS). And it's growing. U.S. Customs and Border Protection already operates eight Predator drones. Under pressure from the congressional Unmanned Systems Caucus -- yes, there's already a drone lobby, with 50 members -- two additional Predators were sent to Texas in the fall…

Up until this point, controversy surrounding drones centered on the ethics of asymmetrical warfare and concerns as to whether robotic Hellfire strikes constituted extrajudicial executions under the Geneva Convention. The elimination of foreign terrorists -- and a handful of U.S. citizens -- has been generally received as an acceptable alternative to "boots on the ground." Consider the fact that since 2011, the U.S. Air force has trained more drone pilots than fighter and bomber pilots combined.

Of course, up until now, UAVs have been recognized as an instrument of war -- an important, impersonal resource in our global war on terror. Many are aware that, in recent years, Customs and Border Patrol has also relied on drone surveillance to monitor our border with Mexico, and prevent illegal immigration and drug trafficking.

Now, critical questions are being raised about domestic drone use. First and foremost, how will technology refined on distant battlefields -- and employed in a shadow war against global terror syndicates and militant client-states -- be used at home? It's hard to process American skies full of UAVs, whose predatory cousins are busy performing "decapitation" strikes in the AF/PAK.

High profile drone strikes of the sort that killed al Qaeda's American-born talent scout, Anwar al-Alwaki, aren't the norm. The vast majority of unmanned flight time is spent gathering intelligence, performing surveillance and carrying out reconnaissance. In military jargon, this is termed "ISR" -- shorthand for those missions that are too "dull, dirty, or dangerous" for manned aircraft.

For some, this portends serious privacy concerns. Americans are understandably alarmed by the threat of a surveillance state, relentlessly monitored by flying robots -- some, no bigger than a hummingbird, others large enough to carry heavy ordnance. In an age when our expectations of privacy seem increasingly flimsy, drone technology appears poised to dramatically, and invasively, increase the government's ability to breech your bubble.

Americans are just now waking up to this unpleasant reality.

As the Cato Institute's Gene Healy explained to me, billions of dollars invested in the NSA data-mining regime represents a pretty severe threat to American privacy. But that menace remains fairly abstract. Not so, suggests Healy, when you learn "the government has eyes in the sky that perch undetected over your house."

Some drones fly for days at a time. Others are so small and efficient they can be powered by household batteries. Highly sophisticated camera technology collects a constant stream of surveillance footage. The reason local law enforcement doesn't keep a camera on every street corner is that it's expensive -- drones dramatically lower the opportunity cost of state supervision.

In other words, it would be difficult to envision a more efficient, cost-effective instrument of state surveillance. And don't forget -- we should assume our privacy protection laws run a step behind technological change.

So is this the stuff of science fiction? Or is it simply a contemporary rendering of the East German police state -- absent human informers -- but boasting a similarly advanced network of spy-cameras, now mechanized and airborne?

Back in April, I corresponded with Ryan Calo -- Director for Privacy and Robotics for the Center for Internet and Society at Stanford University and incoming professor of law at the University of Washington. He warned the following, with respect to the evolving FAA mandate and presumptions about the security of your privacy:

The Federal Aviation Administration has historically focused on safety. But this does not mean that the FAA cannot solicit comment on privacy. Other federal agencies---for instance, the National Highway Traffic Safety Administration---routinely take into account a wide variety of social and legal hurdles to the deployment of new technologies. And the new law charges the FAA specifically with determining the impact of drones on national security. My hope is that the FAA will respond to the recent petitions and look into the privacy concerns the domestic use of drones by government clearly raise. If the FAA doesn't, who will?

In response to these concerns, a bipartisan pair of Congressional lawmakers -- Reps. Joe Barton (R-Texas) and Edward Markey (D-Mass.) -- pressed acting FAA Administrator, Michael Huerta, to demonstrate how it plans to protect the privacy of American citizens if drone use increases. As of press time, the agency had not responded, although the FAA is continuing with plans to fully integrate unmanned aerial vehicles (UAVs) into our friendly skies.

Absent FAA riposte (and with a tip of the hat to Healy's June 12 column in the Washington Examiner) consider that the Senate Armed Services Committee called for drones to fly "freely and routinely" about American airspace in its recent 2013 Defense Authorization bill.

The potential damage to personal privacy prompted a hasty reply in Congress. Senator Rand Paul (R-KY) and Congressman Austin Scott (R-GA) took immediate and appropriate action to define the terms and temperament of drone surveillance.

Sen. Paul told me the following:

As technology advances, we have to make sure it still complies with our Constitution. The Fourth Amendment clearly covers something like spying from above without a warrant. While law enforcement may want to advance their capabilities, they still must square them with our rights as citizens.

Sen. Paul's bill would prohibit the gratuitous use of drones by the government, except when a warrant is issued for its use in accordance with the Fourth Amendment.

Remember, the trick with drones is it's difficult to assert privacy. You don't enjoy a reasonable expectation of privacy in a public places, where your face, your car, and your family are already visible to everyone. Drones do not involve "unreasonable searches and seizures," to quote the Fourth Amendment. The Supreme Court has recognized that surveillance, in plain view, isn't "unreasonable" -- it isn't even a "search." However, a major uptick in the use of police drones might force the Supreme Court to re-examine how much police surveillance is too much police surveillance.

Rep. Scott communicated a similar message as Sen. Paul, but raised an interesting and important point about the potential payback of domestic drones.

As he explained:

Drones are an effective and necessary technology for both our military and law enforcement. As drone technology advances, I expect the use of drones will expand as well. However, we must get out in front on this issue so that the use of new drone technology is consistent with the 4th Amendment to the U.S. Constitution which protects American citizens against unreasonable search and seizure.

In other words, drones can and will prove a cost-effective solution to niche needs, if employed in a responsible manner. Writing for Wired, Noah Schachtmann details the brighter side of drones -- as cost-efficient utility maximizers that quietly, cheaply, and cleanly assist a spectrum of private industries. For instance, one might not assume that a farmer monitoring his wheat fields for nitrogen deprivation might employ a UAV not unlike the sort that's currently patrolling Helmand Province in Afghanistan. Weather monitoring, search and rescue, border patrol, et cetera, present "best practices" for drone use. However, we must remain vigilant.

Again, quoting CFR's resident drone-savant Micah Zenko:

…if there is anything to be learned from America's use of drones abroad, it is that mission creep follows. Once security forces have access to the near real-time video and radar surveillance that drones can provide, they become addicted -- and subsequently develop new missions for how drones can be used.

So, while it would be alarmist to conflate drones abroad with drones at home, a healthy skepticism at the advent of their domestic employment will limit potential invasions of privacy down the road.

Likewise, let us beware spoon-fed "security" narratives lest we find ourselves living in a brave, new world. And if you get the feeling somebody's watching you, you're probably right.

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